Set Aside Waiver of Right to Jury Trial

When I was a kid, I wanted to be a super hero. I wanted to protect the weak; fight for what was right and just; and wear a cape. I knew sometimes I’d have the odds stacked against me. But, super heroes don’t give up just because they might lose. The fate of the world hangs in the balance.

I just drafted my first motion to set aside a criminal defense client’s waiver of his constitutional right to jury trial. I didn’t feel like a super hero doing it; even though, I prepared this motion from scratch; meaning, no template was used. [Side note: When I first started law school (and even when I graduated) I thought all motions were from some master book of motions that attorneys had on their shelves. In a way, I was right; the masterbook of motions is made of all of the laws in the land; but there is no actual masterbook filled with every motion ever written. Lawyers write their own motions (or borrow them from other lawyers) and save them as templates for future cases; tweaking these templates to fit the ever-changing facts and law over the course of their time in practice. It’s funny, in a way; I believed in the notion of a masterbook until I heard a very senior attorney tell another attorney who had asked to borrow a motion template, “just make your own; title it whatever you want. Then just put in the facts and the law.” Not exactly super hero stuff, but helpful in its own right.

Why I needed to write the motion:

The US and Michigan Constitutions guaranty each and every person the right to a trial by jury in every criminal prosecution. See Art. 1, §24 of Mich. Const. of 1963 and Art. 3, §2 US Constitution, along with the 5th, 6th, and 14th Amendments to the US Constitution. The Michigan and US Constitutions are slightly different, but the basic right is there for every person accused of a crime.

My client is being prosecuted for a misdemeanor, punishable by up to 93 days in jail. He was initially arraigned in October of 2011. However, due to various delays, both on his part and on the part of others, he was not granted court-appointed counsel until January 31st, 2012. I wasn’t actually appointed until February 1st, 2012. However, he waived his right to trial by jury back on January 4, 2012; upon the suggestion or his own mistaken assumption about what the prosecutor meant.

Now, this is where it gets interesting; before he could actually waive his right to counsel, the court must ensure that he knows he has the right to a trial by jury, that he understands that right, and that he means to waive that right voluntarily. See MCR. 6.402(B). The court and the prosecutor must also consent his waiver. See MCR 6.401 et seq. Since, it could be argued that the above arrangement is like the fox guarding the henhouse, the Michigan Court Rules also provide that a criminal defendant must also be afforded the opportunity to obtain counsel, be provided with a copy of the criminal information, and must be arraigned before any arraignment can take place. See MCR 6.402(A).

I drafted the motion, in essence, because I was not appointed until well after he had already waived his right to trial by jury. I argued in my motion, that everything else in the court rule for waivers of that right hinges upon my client’s ability to have counsel, so that he has the ability to understand the right and voluntarily choose to give it up. He was denied the ability to do so because he wasn’t granted counsel until 27 days after his waiver.

What the prosecutor will most likely argue:

The prosecutor will most likely argue three things: 1) too much time has passed, 2) his waiver was still knowing and voluntary because the court explained everything on the record, and 3) that she never suggested to my client that a bench trial is better. If she comes out of the gate arguing those things, I’ll just rely on the caselaw and the facts to argue vigorously for my client. She may be correct on all of those points, but being correct isn’t the same as being right.

If the prosecutor wins, we’ll have to preserve the issue for appeal and proceed with the bench trial. My client’s fate hangs in the balance. Whether he has a bench or a jury trial doesn’t really impact anyone else like it will him. It’s a helluva coin toss that could have been avoided if my client had requested an attorney sooner or if the court had delayed the issue of waiver until my client had the opportunity to have counsel advise him.

Lesson: Super hero or not, I still get to fight the good fight. I don’t get to save the world or jump over tall buildings in a single bound. Instead, I strive to make sure our Constitution works for all of us; especially, those that don’t really understand it. They need its protection the most.

Note to other people charged with a crime: Don’t waive your constitutional right to a jury trial lightly, or without seeking the advice of a criminal defense attorney first.

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